While we have won some and lost some, we had a big loss the other day when Judge Laurence Silberman of the D.C. Circuit Court of Appeals found that one of the worst features of Obamacare - the individual mandate that requires that Americans purchase health insurance - is constitutional.
It is bad enough that this judge put lipstick on this pig of a law, but what really steamed me was his rationale for finding the law unconstitutional. Hear it from the judge first before I pick it apart:
...a command that restaurants or hotels are obliged to serve all customers regardless of race: While people like to morally preen and feel all self-righteous by singing hosannas toward the 1964 Civil Rights Act, it is still a law that Congress was given no power to pass under our Constitution. A business today that tried to ban all members of a certain race as was done in the past would not be in business for long in our society. This would be true even if the 1964 CRA did not exist. Boycotts, social pressure, and ostracizing have always been more effective in shaping peoples' actions and behavior than laws ever have. Changes in attitudes about race were taking place even before the 1964 law, and would have continued to do so. The bottom line is that one can vociferously believe that the practice of racial discrimination by private businesses is wrong, but still demand that the Constitution be amended before the Congress passes a law in an area of concern for which they were given no authority under the Constitution.
...that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain: Once again, show me in the Constitution where the federal government has the power to outlaw the use of drugs. News flash! There used to be no federal drug laws. Were there addicts out there? Yes. Did society survive? Yes. Like the previous example, you can be against the use of illegal drugs, but still recognize that regulating them is not the job of the federal government.
...or that a farmer cannot grow enough wheat to support his own family: This one is my favorite. As part of the New Deal, FDR and the Congress passed the Agricultural Adjustment Act, which limited the amount of crops that farmers could grow. The intention was to prop up the price of food by creating an artificial shortage. One farmer - last name Wickard - grew more wheat on his farm than the law allowed, even though he was growing the extra wheat simply to feed his family. After being pursued for this act by the federal government, Wickard argued in federal court that Congress had no jurisdiction over his growing of wheat because what he grew not only stayed within his state, it stayed on his farm. The case eventually reached the Supreme Court. In the infamous Wickard v. Filburn (1942), the Supreme Court found that even though farmer Wickard was growing the unauthorized wheat for his and his family's own consumption, and the wheat did not cross any state lines, Wickard's growing of the wheat still constituted interstate commerce (and thus the ability for Congress to regulate the situation) because that meant there was some wheat somewhere out there from another state that would not be purchased because Wickard had produced his own.
The mandate, Silberman wrote, “seems an intrusive exercise of legislative power" and “certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain or that a farmer cannot grow enough wheat to support his own family.”I know I am just one of those lowly proletarians with no law degree, but this judge is out of his friggin' mind. Just look at the past examples of legislative overreach he uses for his justification:
“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins,” Silberman wrote.
...a command that restaurants or hotels are obliged to serve all customers regardless of race: While people like to morally preen and feel all self-righteous by singing hosannas toward the 1964 Civil Rights Act, it is still a law that Congress was given no power to pass under our Constitution. A business today that tried to ban all members of a certain race as was done in the past would not be in business for long in our society. This would be true even if the 1964 CRA did not exist. Boycotts, social pressure, and ostracizing have always been more effective in shaping peoples' actions and behavior than laws ever have. Changes in attitudes about race were taking place even before the 1964 law, and would have continued to do so. The bottom line is that one can vociferously believe that the practice of racial discrimination by private businesses is wrong, but still demand that the Constitution be amended before the Congress passes a law in an area of concern for which they were given no authority under the Constitution.
...that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain: Once again, show me in the Constitution where the federal government has the power to outlaw the use of drugs. News flash! There used to be no federal drug laws. Were there addicts out there? Yes. Did society survive? Yes. Like the previous example, you can be against the use of illegal drugs, but still recognize that regulating them is not the job of the federal government.
...or that a farmer cannot grow enough wheat to support his own family: This one is my favorite. As part of the New Deal, FDR and the Congress passed the Agricultural Adjustment Act, which limited the amount of crops that farmers could grow. The intention was to prop up the price of food by creating an artificial shortage. One farmer - last name Wickard - grew more wheat on his farm than the law allowed, even though he was growing the extra wheat simply to feed his family. After being pursued for this act by the federal government, Wickard argued in federal court that Congress had no jurisdiction over his growing of wheat because what he grew not only stayed within his state, it stayed on his farm. The case eventually reached the Supreme Court. In the infamous Wickard v. Filburn (1942), the Supreme Court found that even though farmer Wickard was growing the unauthorized wheat for his and his family's own consumption, and the wheat did not cross any state lines, Wickard's growing of the wheat still constituted interstate commerce (and thus the ability for Congress to regulate the situation) because that meant there was some wheat somewhere out there from another state that would not be purchased because Wickard had produced his own.
And let us not allow to slide by this final comment: ...and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins. No matter how local? The Tenth Amendment truly is dead with Circuit Court judges saying such things. It is so simple, I can type it from memory: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. That means if the issue is local, then it is NOT up to Congress to get involved, no matter how much they may want to.
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I am disheartened by Judge Silberman's comments. His justification for agreeing with the health insurance mandate is essentially that the federal government has run roughshod over our rights so completely over the past 70 years, what does it matter if they do so just a little bit more.
With different federal courts at both the district and circuit level giving differing positions on the constitutionality of Obamacare, and especially its mandate to purchase health insurance, the chattering classes are in almost unanimous agreement that the Supreme Court is going to take up this issue. If their decision-making processes are along the lines of Wickard vs. Filburn (or Kelo vs. New London, or Dred Scott vs. Sanford, for that matter), then we are in serious trouble.
"If a nation expects to be ignorant and free... it expects what never was, and never will be." -Thomas Jefferson
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